Diplomatic rows an employment world of their own

11 April 2018

In early March former Russian double-agent, Sergei Skripal, and his daughter, Yulia, were found by police unconscious and in extremely serious condition on a bench in Salisbury, England.

British officials believe an assassin smeared a Russian-developed nerve agent, Novichok, on the handle of Skripal's front door.

Skripal remains in critical condition and unresponsive but Yulia is now conscious and talking. A police officer who attended the scene also became very ill but was discharged after 18 days in hospital.

The nerve agent used was so potent that British officials say the operation could only have been carried out by a trained professional, most likely with approval from the Kremlin, and perhaps from Putin himself.

Russian Foreign Minister Sergei Lavrov has suggested the British government might have poisoned Sergei Skripal to cover up difficulties over Brexit.

Matters escalated when Russia continued to deny involvement. British Prime Minister Theresa May expelled 23 Russian diplomats and their families from Britain as the diplomats were thought to be engaged in espionage.

In the past New Zealand has not been shy about prosecuting foreign operatives, including the bombing of the Rainbow Warrior by the French Secret Service and the prosecution and imprisonment of Dominique Prieur and Alain Mafart.

In more recent times two Israeli operatives served time for trying to obtain New Zealand passports on false grounds.

So why are diplomats engaged in espionage not prosecuted in courts when their fellow spies have been? There might be many reasons for this.

It is hard to catch people and gather the evidence. If you do have the evidence, using it will usually disclose how you obtained it and threaten your sources.

And finally, even if you do have the evidence and prosecute a diplomat, they are entitled under the Vienna Convention to claim diplomatic immunity.

Diplomatic immunity has been adopted into New Zealand own domestic law so a diplomat to New Zealand that claims diplomatic immunity cannot be prosecuted by our courts.

Diplomats are typically engaged under the employment law of their home country, rather than New Zealand employment law. New Zealand diplomats representing us overseas are also employed under the laws of their home country, New Zealand.

Conversely, if a High Commission or embassy in New Zealand hires a worker from New Zealand, such as a chef or a gardener, those workers will be employed under New Zealand employment law.

However, because the High Commissioners or ambassadors employing those workers have diplomatic immunity, workers usually cannot raise a personal grievance that will succeed.

The Employment Relations Authority or Employment Court does not have jurisdiction unless immunity is waived.

What happens if a diplomat behaves in a way that is criminal? Usually they will be immediately recalled to their home country.

In 2014, former assistant to the defence attache at the Malaysian High Commission in Wellington, Muhammad Rizalman, followed a young woman to her Wellington home, waited outside for 30 to 40 minutes, and then walked in the unlocked door and appeared in her bedroom naked from the waist down.

Rizalman was charged with burglary and assault with intent to rape, and the New Zealand Government asked the Malaysian Government to waive diplomatic immunity with regard to Rizalman.

He was initially allowed to return to Malaysia and rely on diplomatic immunity. Ultimately, Malaysia did agree to waive immunity, Rizalman was extradited, and he was prosecuted and convicted in the New Zealand courts.

So diplomatic immunity is not always asserted by the government of the person in question.

Diplomatic staff generally behave in accordance with the highest of standards and it would be extremely unusual to commit offences.

Britain has accused Russian diplomats of spying which, if true, would certainly be the exception. Diplomats engaged in spying are behaving in a way that is inconsistent with their diplomatic status.

Britain has kicked out 23 Russian diplomats in response to the attack on Skripal. Trump also expelled 60 Russian diplomats from the US, and Canada, Australia, and 18 European states have taken similar steps.

New Zealand expelled no one, with Prime Minister Ardern stating there were no Russian spies in New Zealand. Some may think this frail. Undoubtedly many of the diplomats expelled from Western countries were no different to Russian diplomats here or in Australia.

Over the years a small handful of foreign diplomats to New Zealand have been involved in civil disputes and fewer still have broken the criminal law.

Generally, the diplomatic corps follows very high standards. Life in New Zealand, in Wellington in particular, is greatly enriched by the diplomatic community and the values they bring.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.